Meadows & Meadows (No. 2) - [2019] FamCA 491

FAMILY COURT OF AUSTRALIA

MEADOWS & MEADOWS (NO. 2)

[2019] FamCA 491

FAMILY LAW – CHILDREN – contested residence – whether either parent presents as an unacceptable risk – although concerns exist around the mother’s failure to spend time with the child – orders made for child to live with the father and spend unsupervised time with the mother

FAMILY LAW – PROPERTY – modest pool – dispute as to contributions – orders for 45%/55% division with similar superannuation splitting orders

FAMILY LAW – SPOUSE MAINTENANCE – application by wife dismissed

Family Law Act 1975 (Cth), ss. 60B, 60CC, 72, 75, 79

Meadows & Meadows [2017] FamCA 14
Meadows & Meadows [2017] FamCA 907
Meadows & Meadows [2019] FamCAFC 1
Hickey & Hickey (2003) FLC 93-143
Townsend & Townsend (1994) 18 Fam LR 505

APPLICANT:

Ms Meadows

RESPONDENT:

Mr Meadows

FILE NUMBER:

PAC

3509

2013

DATE DELIVERED:

30 July 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Sydney

JUDGMENT OF:

Baumann J

HEARING DATE:

14, 15, 16 and 17 January 2019

WRITTEN SUBMISSIONS FINALISED:

7 March 2019

REPRESENTATION

THE APPLICANT APPEARED IN PERSON

THE RESPONDENT APPEARED IN PERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr L Fermanis

INDEPENDENT CHILDREN’S LAWYER:

Mr P Wilkins
Phillip A Wilkins & Associates

Orders

Parenting

That all previous parenting orders be discharged.
That the father have sole parental responsibility for the child, B born … 2011 (“the child”) and in exercising his sole parental responsibility in relation to any major long-term decisions, before the father makes the decision, he shall:
(a)notify the mother in writing of his intended decision;
(b)allow the mother fourteen (14) days to provide to the father in writing her opinion of such intended decision;
(c)consider the mother’s opinion before making his final decision; and
(d)then advise the mother of his final decision.
That the child live with the father.
That the child shall spend time with the mother as may be agreed in writing between the parents, but at least as follows:
(a)Commencing from the date of these Orders, for a period of three (3) calendar months, each second Saturday from 10.00am until 2.00pm;
(b)For a period of three (3) calendar months thereafter, each second Saturday from 10.00am until 4.00pm;
(c)Thereafter, each second Saturday from 10.00am until 6.00pm; and
(d)On Mother’s Day from 10.00am until 6.00pm.
That to facilitate the time in Order 4 above, changeover shall occur at Suburb MM Children’s Contact Centre (“the Centre”) and the Centre’s costs shall be shared equally by the parents and paid on demand by the Centre.
That within seven (7) days of the date of these Orders, the parents are to make contact with the Centre and make arrangements with the Centre personnel to undertake all the Centre’s requirements to become eligible to be able to use the Centre.
That the father have leave to provide a copy of these parenting Orders to:
(a)any school upon which the child attends;
(b)any medical practitioner upon which the child attends; and
(c)the Centre.
That the child…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Meadows & Meadows (No. 2)

Details

AGLC: Meadows & Meadows (No. 2) [2019] FamCA 491
Case: [2019] FamCA 491
Decision Date: 30 July 2019

CaseChat Overview and Summary

In *Meadows & Meadows (No. 2)*, Baumann J of the Family Court of Australia considered a dispute between a husband and wife concerning parenting arrangements for their child, property division, and spousal maintenance. The parenting dispute centred on whether either parent posed an unacceptable risk to the child, with particular concerns raised about the mother's failure to spend time with the child. The property dispute involved a modest asset pool and disagreements regarding the parties' contributions.

The court was required to determine the most appropriate parenting orders for the child, specifically addressing issues of parental responsibility, residence, and time spent with each parent, while also assessing any risks presented by either parent. In relation to property, the court needed to determine the division of the parties' assets and liabilities, including their respective superannuation interests. Finally, the court had to consider the wife's application for spousal maintenance.

Regarding parenting, the court found that while concerns existed about the mother's lack of engagement, these did not amount to an unacceptable risk. Consequently, orders were made for the child to live with the father, with the father having sole parental responsibility but required to consult the mother on major long-term decisions. The child was to spend supervised time with the mother, with the duration and frequency of this time to gradually increase over a three-month period, and changeovers were to occur at a contact centre. The court also made orders restraining denigration of either parent and restricting the discussion of proceedings with the child. In the property settlement, the court ordered a division of the net non-superannuation interests of 45% to the wife and 55% to the husband, with the husband to pay the wife a sum of $200,000 and retain the former matrimonial home. A superannuation splitting order was also made, allocating $45,000 to the wife from the husband's superannuation fund. The wife's application for spousal maintenance was dismissed.

Orders

Orders of the court

Parenting

That all previous parenting orders be discharged.

That the father have sole parental responsibility for the child, B born … 2011 (“the child”) and in exercising his sole parental responsibility in relation to any major long-term decisions, before the father makes the decision, he shall:

(a) notify the mother in writing of his intended decision;

(b) allow the mother fourteen (14) days to provide to the father in writing her opinion of such intended decision;

(d) then advise the mother of his final decision.

That the child live with the father.

That the child shall spend time with the mother as may be agreed in writing between the parents, but at least as follows:

(a) Commencing from the date of these Orders, for a period of three (3) calendar months, each second Saturday from 10.00am until 2.00pm;

(b) For a period of three (3) calendar months thereafter, each second Saturday from 10.00am until 4.00pm;

(d) On Mother’s Day from 10.00am until 6.00pm.

That to facilitate the time in Order 4 above, changeover shall occur at Suburb MM Children’s Contact Centre (“the Centre”) and the Centre’s costs shall be shared equally by the parents and paid on demand by the Centre.

That within seven (7) days of the date of these Orders, the parents are to make contact with the Centre and make arrangements with the Centre personnel to undertake all the Centre’s requirements to become eligible to be able to use the Centre.

That the father have leave to provide a copy of these parenting Orders to:

(a) any school upon which the child attends;

(b) any medical practitioner upon which the child attends; and

That the child shall communicate with the mother by telephone as agreed between the parents but failing agreement on at least between the hours of 6.30pm and 7.30pm each Wednesday and each non-contact Saturday.

That the mother’s telephone conversations with the child, as provided for in Order 8 hereof shall be supervised by the father, or his nominee, for the next three (3) months only and are not to be lengthy. The father may terminate the call at the conclusion of fifteen (15) minutes of time or at any time he concludes the mother’s conversation with the child has become inappropriate.

10.

That each parent be and is hereby restrained from:

(a) denigrating the other parent, the other parent’s household or extended family, or the child’s school, in the presence or hearing of the child, nor cause, permit or allow any third person to do so;

(b) providing or showing any documents filed in these proceedings (including the family report dated 3 April 2018) to the child, or permitting or causing others to do so; and

11.

That the mother and father shall keep each other advised at all times of their residential address and telephone contact numbers and details of all persons living at the house when the child is in their care and notify the other of any change within seven (7) days of such change.

12.

That the father shall do all things necessary to authorise the child’s schools to provide to the mother on a regular basis copies of school reports, newsletters, and other information regarding the child’s school activities.

13.

That the mother and father shall be at liberty to attend the child’s school for parent/teach interviews, school assemblies, school carnivals, extra-curricular activities and any other event parents are normally invited.

14.

That the mother and father keep each other informed of any medical emergency that may involve the child or any medical treatment that the child may receive whilst the child is in the care of that parent.

15.

That in the event of the child suffering a medical emergency requiring medical attention while spending time or living with either parent:

(a) the other parent is to be notified as soon as practicable;

(b) the other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and

(c) the medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them on request.

16.

That the father shall keep the mother informed and provide details and an authority to the child’s general practitioner and any other medical specialist including counsellor or psychologist the child may attend upon from time to time so that the mother shall be permitted to contact any medical practitioner/specialist/counsellor to discuss the child’s condition or treatment, if any, and these Orders shall be sufficient authority for each party to do so.

17.

That any order restraining the removal or attempted removal of the child from the Commonwealth of Australia be discharged, and the child’s name be removed from the Airport Watch List.

18.

That after 30 July 2020, provided these Orders have been complied with, the mother and the father should engage in a form of community-based family dispute resolution and genuinely discuss extending the time the child spends with the mother to include overnight time and part of school holidays as well as other special event time.

Property

19.

That the husband shall pay the wife the sum of $200,000 (“the settlement sum”) within sixty (60) days of the date of this Oder and the husband shall retain as his exclusive property free of claims by the wife, the former matrimonial home at O Street, Suburb P (“the home”), with the husband indemnifying the wife from all claims, demands and actions arising from the home including the Bank PP mortgage.

20.

That:

(a) the Court allocates, as required by s 90MT(4) of the Family Law Act 1975, a base amount of $45,000 to the Applicant wife, Ms Meadows out of the Respondent husband’s, Mr Meadows interest in the WW Superannuation Fund (“the Fund”);

(b) in accordance with s 90MT(1)(a) of the Family Law Act 1975, the Trustee of the Fund:

(i) creates an entitlement on the part of the wife to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified in Order 20; and

(ii) makes a corresponding reduction in the entitlement to the husband, or such other person to whom a splittable payment may be made, would have had in the fund, but for these Orders.

(c) this Order has effect from the operative time and the operative time is four (4) business days after the date of service of a copy of the sealed Orders on the Trustee of the WW Superannuation Fund.

21.

That the operation of Order 20 be stayed until such time as the husband files an Affidavit deposing to:

(a) service of a copy of these Orders on the trustee of the WW Superannuation Fund; and

(b) the response, if any, received from the Trustee.

22.

That in the event that the Affidavit deposes that no response was received from the Trustee within twenty-eight (28) days of service of the Orders, or that the Trustee consents to the terms of the Orders, the stay imposed by Order 21 hereof is automatically discharged upon the filing of the Affidavit, without further order.

23.

That unless otherwise dealt with in this Order:

(a) the wife shall retain as her sole and exclusive property free from claims by the husband:

(i) her jewellery;

(ii) her household contents;

(iii) her superannuation entitlements; and

(iv) any bank accounts and other personal property in her possession, power and control at the date of this Order.

(b) the husband shall retain as his sole and exclusive property free from claims by the wife:

(i) his motor bike;

(ii) his Vehicle 1;

(iii) his household contents, tools and trailer;

(iv) his remaining superannuation entitlements (after the splitting order at Order 20 takes effect);

(v) any bank accounts and other personal property in his possession, power and control at the date of this Order; and

(vi) his shareholding and other entitlements in L Pty Ltd (save for the Vehicle 3).

24.

That the husband shall, within sixty (60) days of the date of this Order, sign all necessary documents as the sole director of L Pty Ltd to transfer and assign the company’s right, title and interest in the Vehicle 3 (formerly registered …) to the wife.

25.

That if the husband is unable or unwilling to pay to the wife the settlement sum prescribed by Order 19 above, then:

(a) the home shall be sold by public auction and listed for that purpose by the husband, within ninety (90) days of the date of this Order, with a registered real estate agent agreed by the parties, and failing agreement as nominated by the President of the Real Estate Institute of New South Wales;

(b) the reserve price of the auction shall be no less than $620,000 unless agreed to by both parties but may be higher;

(d) upon the settlement of any contract for sale of the home, the proceeds of sale shall be distributed as follows:

(i) payment of all real estate agent commission and marketing expenses;

(ii) payment of proper legal costs associated only to the husband’s sale of the home and proper adjustments on sale for rates and Government levies;

(iii) discharge of the secured Bank PP mortgage liability;

(iv) the balance (“nett sale proceeds”) to be distributed between the parties as set out in the next order.

26.

That the nett proceeds of sale are to be distributed between the parties so as to achieve an overall division of the nett non-superannuation interests found to exist and identified at paragraph 83 of the Reasons for Judgment, in the proportions of 45% to the wife and 55% to the husband.

27.

That pending the payment by the husband under Order 19 above, or the sale of the home under Order 25 above, the husband shall be entitled to remain in exclusive occupation of the home subject to him:

(a) continuing to pay the interest only payments on the Bank PP mortgage;

(b) continuing to pay rates, insurance and Government levies on the home as and when they fall due; and

28.

That each party shall be responsible solely for any credit card liabilities, personal loans and other debts and liabilities not otherwise dealt with in these Orders, as may be in their name at the date of this Order and shall indemnify the other party from any claims in respect of such labilities, and without affecting the generality of this Order. The wife shall specifically be solely responsible for her HECS debt.

29.

That the parties shall liberty to apply or any orders to enforce the provisions of this Order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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